1507950 (Migration)

[2016] AATA 3019

1507950 (Migration) [2016] AATA 3019 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weici Yang

CASE NUMBER:  1507950

DIBP REFERENCE(S):  BCC2015/643292

MEMBER:Denise Connolly

DATE:11 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 11 January 2016 at 6:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 June 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate’s decision record, provided to the Tribunal by the applicant, records that the applicant was granted the Subclass 457 visa on 2 August 2013. He was sponsored by Rosen Australia Pty Ltd, a standard business sponsor, to work in the nominated occupation of Program or Project Administrator.  Condition 8107 was attached to the visa. It requires, among other things, that the applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor, and that if the applicant ceases to be employed he must not cease employment for a period exceeding 90 days.

3. The Department received written notification from Rosen Australia Pty Ltd (Rosen) that the applicant had ceased employment with the sponsor on 24 March 2014. On 26 May 2015 the Department sent the applicant a notice of intention to consider cancellation however the applicant did not respond. The delegate found that as the applicant had not been employed by the sponsor for a period exceeding 90 days he had not complied with condition 8107 which requires him to not cease employment for a period exceeding 90 days. As the applicant had not complied with a condition imposed on his Subclass 457 visa the delegate cancelled the visa under s.116(1)(b). The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 13 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who was present at the hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition essentially requires the visa holder, among other things, to work only in the occupation listed in the approved nomination unless certain circumstances apply (which are not relevant in this case), and to work only in a position in the business of the sponsor or an associated entity of the sponsor, and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

9. The applicant ceased employment in the nominated position, Program or Project Administrator, on 24 March 2014. The delegate found that, at the time of cancellation, 14 months had passed since the applicant had worked for the approved sponsor in the skilled occupation for which he was granted the Subclass 457 visa.

10. At the hearing the Tribunal discussed with the applicant the requirements of condition 8107, including that the applicant work only in the occupation listed in the approved nomination for  the business of the sponsor or an associated entity of the sponsor. The applicant told the Tribunal that he commenced working for Rosen on 1 June 2013. Rosen made him redundant on 24 February 2014. He was informed by letter and given 4 weeks’ notice. He did not inform the Department because the HR Manager at Rosen told him that they would notify the Department and that he did not need to. He said he was made redundant, along with about 10 others, because the company suffered economic loss and there was a corporate restructure.  He found out there was a job at Ming Fa and he had an interview. He confirmed that Ming Fa is not an associated entity of Rosen.  Ming Fa lodged a nomination application on 25 June 2014 which was refused. They then lodged another nomination application which was also refused. He thinks they lodged about 5 nomination applications but they were all refused. He claims part of the reason was that the lawyer did not respond to the Department’s requests and lodge the required documents. He thinks the last refusal was on the basis that the position was not genuine. The applicant confirmed he has not worked for the sponsor, Rosen, since March 2014.

11. On the basis of the information in the delegate’s decision record, provided to the Tribunal by the applicant, and the applicant’s oral evidence at the hearing, the Tribunal finds that the applicant ceased working for the sponsor in the position associated with the nominated occupation on 24 March 2014. He did not return to work for the sponsor after that date, albeit because of circumstances beyond his control, Rosen’s financial difficulties and the corporate restructure. The applicant has claimed in a written statement that he commenced working for Ming Fa 84 days after being made redundant by Rosen. However condition 8107(3)(a)(ii)(B) requires the applicant work only in a position in the business of the sponsor. The Tribunal finds that in March 2014 the applicant ceased working in a position in the business of the sponsor and he did not return to that employment. The Tribunal accepts that this was due to circumstances beyond his control. However the applicant consequently did not comply with condition 8107. 

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

13. Prior to the hearing the applicant provided evidence to the Tribunal that a nomination application had been made by the applicant’s current sponsor, Ming Fa Trading Co Pty Ltd (Ming Fa) on 7 September 2015. He also provided associated documentation in relation to his position at Ming Fa including an employment contract, evidence of income, a letter from Ming Fa confirming his employment and duties and a statement from the applicant claiming that his previous migration agent failed to submit relevant information to the Department. He asserts that he commenced employment with Ming Fa on 18 June 2014, 84 days after being made redundant by Rosen. His previous agent failed to provide this evidence to the Department. Ming Fa has been made a standard business sponsor however several applications for nomination approval have been refused.

14. At the hearing the applicant asserted that several nomination applications associated with the position in which he works had been refused because the then migration agent had made those applications without informing the applicant or Ming Fa and he had not provided the required documentation on time. He thought about 5 nomination applications had been made. He thinks the Department refused nomination applications because it found the position (Program Administrator) is not genuine and for other reasons, such as a failure to provide evidence in relation to the salary. The Tribunal indicated its concern that 5 refusals by the Department indicates that the nomination application may not ever be approved and this is relevant to its consideration of the discretion to cancel the visa as the applicant would not be working in a position associated with an approved nomination. The applicant claimed that Ming Fa did not even know about the nomination applications so it was not given an opportunity to provide all of the relevant evidence. The Tribunal queried why the migration agent would have made nomination applications without the sponsor’s knowledge. The applicant could not explain this. The Tribunal asked if there had been a complaint lodged about the migration agent. The applicant indicated he was thinking about it. He confirmed another nomination application had been lodged and asked the Tribunal to wait for the outcome. He indicated however that the latest nomination application was lodged by the previous migration agent. The current migration agent was at the hearing and confirmed that the matter would be now dealt with by her. The Tribunal asked to see all of the refusal notices before deciding whether it would wait for the outcome of the latest nomination application. It explained that it was not reviewing the nomination decisions but was not sure if there was any utility in waiting for the latest nomination application to be finalised by the Department given the number of prior refusals. The applicant agreed to provide those decisions by 23 October 2015.

15. The applicant has provided a written submission addressing the discretionary factors set out in PAM3 ‘General visa cancellation powers’. He indicated he wishes to remain in Australia to work for Ming Fa in the Project Administrator position. He started working for Ming Fa within 90 days of leaving Rosen. He relied on his previous migration agent and did not realise the nomination applications had been refused. At the hearing he explained that he ultimately wants to remain in Australia permanently. The circumstances of the breach were beyond his control. He has lived here for 5 years having studied a Master of Information Technology. He has always complied with visa conditions and has not had any other problem with the Department. If his visa is cancelled he will lose his job and have no income. He is divorced but he has started a relationship with an Australian citizen. His concern with returning to China is that his family borrowed money for his study and the loan is not repaid. He said he now owes his parents the money. He acknowledged however that he has an investment property in Australia. The Tribunal noted that he would be able to sell the property if he needs to repay his parents. He did not dispute this.

16. The Tribunal agreed to wait until 23 October 2015 for the applicant to provide the Department’s nomination refusals to Ming Fa in relation to their applications for nomination approval for the position the applicant has been employed in. It explained it would consider whether to wait for the Department’s decision in relation to the latest nomination application. The Tribunal indicated that, given this is the 5^th application for nomination approval, it would not agree to wait for further nomination applications if the latest application is unsuccessful. The Tribunal indicated that if the current nomination application is not approved this would be relevant to its consideration in relation to the cancellation decision as the applicant would not be employed in a position associated with an approved nomination.

17. After the hearing the applicant provided evidence that, in the period 25 June 2014 to June 2015, 4 nomination applications had been made and refused. The 5^th application was made on 7 September 2015 and the applicant is waiting for the Department’s decision. The Department gave 2 reasons for refusing the nomination applications: it was not satisfied the position is genuine; and it was not satisfied the salary is reasonable. He asserts the then migration agent did not provide the evidence sought and this resulted in the Department refusing those applications. He reiterated that he was not responsible for leaving Rosen. He said that since the Department cancelled his visa he has not been able to work and pay his car and home loans. He borrowed $23,000 and purchased a new car in August 2013. He borrowed about $70,000 from his parents to study. After he graduated his parents wanted to invest in property in his name. He bought a property in Melbourne with $250,000 from his parents and a $350,000 loan from the bank. He provided evidence from the banks about these loans. He is unable to repay these loans without an income. Also he has started a relationship with an Australian citizen and he does not want to be separated from her. Their parents have approved the relationship and they plan to marry in the future. If his visa is cancelled he will have to leave Australia and he does not want to be separated from his girlfriend.

18. The applicant provided a letter from Ming Fa stating they thought the migration agent was assisting with 3 nomination applications, including the most recent in September 2015. They were however unaware of 2 of the nomination applications. They noted that the refusals were the consequence of the migration agent failing to respond to requests for information. They provided evidence that they and the applicant have lodged complaints about the migration agent.

19. The Tribunal agreed to wait for the outcome of the most recent nomination application lodged by Ming Fa on 7 September 2015. It wrote to the applicant on 24 November 2015 advising that it agreed to postpone its decision until 4 December 2015. The applicant contacted the Tribunal on 3 December 2015 and advised that the Department had indicated the decision would be made in 2-3 weeks. The Tribunal agreed to wait until 8 January 2016 before making its decision.

20. On 8 January 2016 the applicant’s representative provided to the Tribunal a copy of the Department’s decision about Ming Fa’s nomination application for the position Program or Project Administrator for which the applicant is the nominee. The delegate quotes information given to the Department by Ming Fa in relation to the issue of whether the position associated with the nominated occupation is genuine. The Department refused the application of 7 September 2015 because the delegate decided the position Program or Project Administrator was not genuine and that Ming Fa had embellished the description of the position’s responsibilities and duties in order to meet the requirements. The delegate found that r.2.72(10)(f) (the position associated with the nominated occupation is genuine) was not met.

    Assessment of the evidence

21. The Tribunal is satisfied the applicant’s latest sponsor Ming Fa has had a reasonable opportunity to have the nomination approved. It accepts that the previous 4 applications may have been hindered by the then migration agent failing to respond to requests from the Department. It also accepts the applicant and Ming Fa have complained about that migration agent. However the delegate’s decision of 8 January 2016 confirms that Ming Fa provided evidence in relation to its assertions that the position is genuine. The Tribunal is of the view it now has the evidence it needs to make its decision.

22. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

23. The Tribunal accepts that the applicant may have been made redundant because of circumstances beyond his control, that is, Rosen’s financial difficulties and the restructure. It accepts that he has secured employment with Ming Fa since leaving Rosen. However on the basis of the evidence he has provided regarding the recent refusal of the nomination application the Department is not satisfied Ming Fa genuinely needs a Program or Project Administrator. Having considered the evidence provided by Ming Fa the delegate formed the view the position description had been embellished. On the basis of this evidence provided by the applicant the Tribunal is not satisfied the applicant has secured employment in the occupation Program or Project Administrator or a skilled occupation.

24. The Tribunal accepts that the applicant ultimately wishes to work and remain in Australia permanently. It accepts he has purchased property here with the assistance of his parents, and that he has commenced a relationship with an Australian citizen. However the Tribunal is mindful that the purpose of the Subclass 457 visa is to fill temporarily a skill shortage. While the applicant has indicated that he has secured employment with Ming Fa, on the basis of the evidence he has provided, the Tribunal is not satisfied the employment is in the nominated occupation, Program or Project Administrator, or any other skilled occupation. While the Tribunal accepts the applicant’s claims that he wishes to remain here to work and repay debts to his parents, and that he has commenced a relationship here, the Tribunal is not satisfied there is a compelling need for the applicant to remain in Australia.

25. As far as the Tribunal is aware the applicant has complied with other visa conditions. It appears that this is the only breach known to the Department. There is no evidence to indicate there has been any problem with the applicant’s past or present conduct towards the Department. The Tribunal accepts that the ground for cancellation arose in circumstances where the sponsor’s financial difficulties resulted in redundancies and corporate restructure. However, while it accepts he has employment with Ming Fa, it is not satisfied he has secured future employment as a Program or Project Administrator or in a skilled occupation. In these circumstances, if the visa is not cancelled, the applicant will continue to not meet the condition 8107 requirements for holding a Subclass 457 visa.

26. The applicant has indicated he may suffer hardship if the visa is cancelled because he will be separated from his girlfriend who he plans to marry. The Tribunal accepts that the applicant has commenced a relationship with an Australian citizen. However it is not satisfied this is a good reason to not cancel a Subclass 457 visa. It is of the view that if the applicant wishes to remain in Australia to be with his girlfriend it would be more appropriate for him to apply for a visa of the relevant subclass. This may mean the applicant is temporarily separated from his girlfriend and the Tribunal accepts a separation may cause some emotional hardship. However there is no evidence before the Tribunal that she is dependent on him financially. In fact the applicant claims he has not been earning income since the Department cancelled his visa in June 2015.  The Tribunal is satisfied that any separation from his girlfriend need only be temporary.  The applicant has also claimed that he will suffer hardship because he has borrowed money to pay for his study and purchase a property in Australia. He also bought a new car for which he borrowed money. The Tribunal is satisfied that the applicant will be able to sell those assets if it is the case that he needs to repay his parents, or that he and his family cannot afford to repay those loans. Overall it is not satisfied the applicant or his family will suffer financial hardship if the visa is cancelled. It is satisfied any hardship associated with a visa cancellation will not be significant.

27. There is no evidence before the Tribunal of any consequential cancellation or family violence. Nor is there any evidence that international obligations would be breached as a result of the cancellation.

1. Overall the Tribunal is of the view that the appropriate decision is to cancel the applicant's visa. The Tribunal accepts that the applicant’s employment ceased because of Rosen’s financial difficulties and that it was in circumstances beyond the applicant’s control. However, while he commenced working for Ming Fa within 3 months of being made redundant the Tribunal is not satisfied he has been working as a Program or Project Administrator.  The Tribunal is not satisfied he has secured employment as a Program or Project Administrator or in a skilled occupation. Ming Fa’s nomination application has been unsuccessful even since the former migration agent had not provided the evidence sought by the Department. There does not appear to be any concern in relation to the applicant’s conduct towards the Department. The Tribunal accepts that he has studied here and he wants to remain in Australia permanently. However his reasons for this are in part related to his relationship with his girlfriend, an Australian citizen. The Tribunal is of the view that if the applicant’s main reason for wanting to remain in Australia is his new relationship it is appropriate for him to apply for the relevant visa. It accepts that the applicant may have to go offshore to make such an application and he and his girlfriend may find a separation upsetting. However it is not satisfied this will cause him or his girlfriend any significant emotional hardship. The Tribunal accepts the applicant has borrowed money to purchase assets in Australia, a car and a property. He has been assisted to do this by his family in China. If his family are unable to meet the loan repayments the Tribunal is satisfied the applicant will be able to sell those assets. It is not satisfied this will cause the applicant or his family any significant financial hardship. While the Tribunal accepts that the applicant may want to remain here, it is not satisfied returning to China will result in a breach of international obligations.

2. The Tribunal notes the Subclass 457 visa is a temporary visa for work in fields in demand in Australia and while it may lead to permanent residence where that demand continues, this is not guaranteed. While the Tribunal understands the applicant's desire to remain here permanently it is of the view that this is not a good reason not to cancel his visa in all of the circumstances of his case. If in the future he is able to secure sponsorship, because of his relationship or to work in an occupation listed in an approved nomination, this could be pursued by an application from outside Australia.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

   Denise Connolly
   Member